Thomas v. Colvin
Filing
31
ORDER denying 27 Motion for Attorney Fees. Signed by District Judge Max O. Cogburn, Jr on 9/20/2019. (ams)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:16-cv-00836-MOC
NIKKI T. THOMAS
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Plaintiff,
v.
NANCY BERRYHILL,
Acting Commissioner of Social Security
Defendant.
ORDER
THIS MATTER is before the Court on Plaintiff’s motion for attorney fees under the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A). (Doc. No. 27). Defendant opposes
Plaintiff’s motion, arguing that the Government’s position was substantially justified, and,
alternatively, that the fees sought are unreasonable. For the following reasons, the Court denies
Plaintiff’s motion.
I.
Background
Plaintiff applied for supplemental security income in October 2012, alleging she became
disabled on May 23, 2012. (Tr. 16). Her claim was denied at the initial and reconsideration levels
of review. (Id.). A hearing was held before an Administrative Law Judge (“ALJ”) on February 5,
2015, at which plaintiff had a non-attorney representative present. (Id.). In an April 15, 2015,
written decision, the ALJ denied Plaintiff’s claim. (Tr. 16-27). The Appeals Council denied
Plaintiff’s request for review of the ALJ’s decision on October 11, 2016 (Tr. 1), rendering the
ALJ’s decision the final decision of the Commissioner. See 20 C.F.R. § 404.981.
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Plaintiff appealed the Commission’s final decision, arguing before this Court that the
Commissioner’s final decision was erroneous because: (1) the ALJ did not sufficiently explain
the residual functional capacity (“RFC”) finding; (2) the ALJ failed to resolve an apparent
conflict between information in the Dictionary of Occupational Titles (DOT) and the VE’s
testimony; and (3) the Appeals Council erred in not vacating the ALJ’s decision based on newly
submitted evidence. (Doc. No. 12 at 5-6). The Commissioner filed a responsive brief,
explaining why Plaintiff’s arguments lacked merit, (Doc. No. 16 at 4–13), and Plaintiff did not
reply.
This Court agreed with the Commissioner on all three issues. (Doc. No. 17). Noting that
the ALJ had discussed the mental aspects of Plaintiff’s RFC “in great detail,” the Court found
that the ALJ had appropriately considered the issues relating to (1) Plaintiff’s mood disorder,
anxiety disorder, and stress (id. at 7–8); (2) Plaintiff’s limitation in social functioning (id. at 10);
and (3) Plaintiff’s limitations in her activities of daily living (id. at 11). This Court held that the
ALJ properly considered the evidence of record and explained her findings, which were based on
substantial evidence. (Id. at 7–11).
The Court similarly rejected Plaintiff’s argument that there was an apparent unresolved
conflict between the DOT and the VE’s testimony, pointing to the Court’s prior holdings that
“‘there is no direct correlation between the DOT’s reasoning levels and a limitation to carrying
out simple instructions or performing simple work’” and “‘thus, jobs requiring an individual to
perform such work is consistent with a DOT reasoning level of either 2 or 3.’” (Id. at 12
(quoting Carringer v. Colvin, No. 2:13-CV-27-MOC, 2014 WL 1281122, at *3 (W.D.N.C. Mar.
27, 2014) (citing Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009); Clontz v. Astrue, No. 2:12cv-12-FDW, 2013 WL 3899507, at *5 n.6 (W.D.N.C. July 29, 2013))). In light of these
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precedents, this Court held, there was no conflict—actualized or apparent—in this case (id. at
12).
Finally, this Court rejected Plaintiff’s argument that the Appeals Council erred in
declining to disturb the ALJ’s decision based on newly submitted evidence. (Id. at 12–14). The
evidence, this Court held, was cumulative to the record the ALJ had considered. (Id. at 13).
Thus, after carefully reviewing the ALJ’s decision, the administrative record, and the parties’
briefs, this Court held that the Commissioner’s final decision was supported by substantial
evidence. (Id. at 14). The Court therefore affirmed that decision. (Id.).
On appeal to the Fourth Circuit, Plaintiff abandoned her argument relating to the Appeals
Council, but again contended that the ALJ had erred in formulating and explaining the RFC
finding and in relying on the VE’s testimony. The Fourth Circuit agreed with Plaintiff and
remanded to this Court on February 22, 2019. Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir.
2019).
Plaintiff has now filed the pending motion, requesting $22,022.00 in EAJA fees, based on
104.90 hours of attorney services at a rate of $192.50 per hour and a reported 19 hours of
paralegal time at a rate of $96.25 per hour. (Doc. No. 27-1 at 8–9). In response, the
Commissioner agrees that Plaintiff reasonably expended services before the grant of the remand
to the Commissioner and was thus a prevailing party within the meaning of the Act. The
Commissioner argues, however, that the Government’s position was reasonable in law and fact
and, therefore, substantially justified. Accordingly, the Commissioner asks the Court to deny the
motion. The Commissioner argues, alternatively, that the fees sought are unreasonable and
should be reduced.
II.
Standard of Review
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The EAJA allows an award of reasonable attorney fees and other expenses against the
Government if: (1) the party seeking fees is the “prevailing party” in a civil action brought by or
against the Government; (2) an application for such fees, including an itemized justification for
each amount requested, is filed within thirty days of final judgment in the action; (3) the
Government’s position is not “substantially justified”; and (4) no special circumstances make
such an award unjust. The absence of any of the above factors precludes a fee award. 28 U.S.C.
§ 2412(d)(1)(A), (B).
Although the EAJA itself does not define the term “substantially justified,” the Supreme
Court has stated that “[t]he test of whether the Government’s position is substantially justified is
essentially one of reasonableness in law and fact.” Pierce v. Underwood, 487 U.S. 552, 563-64
(1988) (quoting H.R. Conf. Rep. No. 96-1434, p. 22 (1980)). This does not mean “justified to a
high degree,” but rather refers to a “genuine dispute.” Id. at 565. Thus, the Government’s
position is substantially justified if it is “‘justified in substance or in the main’—that is, justified
to a degree that could satisfy a reasonable person.” Id.; see also Cody v. Caterisano, 631 F.3d
136, 141 (4th Cir. 2011) (quoting Pierce, 487 U.S. at 565). The Supreme Court further clarified
that “a position can be justified even though it is not correct” and “it can be substantially (i.e., for
the most part) justified if a reasonable person could think it correct, that is, if it has a reasonable
basis in law and fact.” Pierce, 487 U.S. at 566 n.2; see also Cody, 631 F.3d at 141 (quoting
Pierce). As the Fourth Circuit has stated, “the Government will avoid paying fees as long as ‘a
reasonable person could [have thought]’ that its litigation position was ‘correct.’” Meyer v.
Colvin, 754 F.3d 251, 255 (4th Cir. 2014) (quoting Pierce, 487 U.S. at 566 n.2).
The Government is therefore free to litigate reasonable positions, regardless of whether
its position ultimately prevails, without the added risk of exposure to attorney fees. “While the
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EAJA redresses governmental abuse, it was never intended to chill the government’s right to
litigate or to subject the public fisc to added risk of loss when the government chooses to litigate
reasonably substantiated positions, whether or not the position later turns out to be wrong.”
Roanoke River Basin Ass’n v. Hudson, 991 F.2d 132, 139 (4th Cir. 1993).
In sum, the EAJA is not a fee-shifting statute that makes the Commissioner automatically
liable for attorney fees every time he loses a case. See Crawford v. Sullivan, 935 F.2d 655, 657
(4th Cir. 1991) (citing Smith v. Heckler, 739 F.2d 144, 147 (4th Cir. 1984)). Moreover, there is
“no ‘presumption that the Government’s position was not substantially justified, simply because
it lost the case.’” Id. (quoting Tyler Business Servs, Inc. v. NLRB, 695 F.2d 73, 75 (4th Cir.
1982)). Rather, a reviewing court must look to the totality of the litigation to determine whether
the Government’s position was substantially justified. A reviewing court must consider “all
aspects of the civil action,” Comm’r, INS v. Jean, 496 U.S. 154, 161 (1990), and “look beyond
the issue on which the petitioner prevailed to determine, from the totality of the circumstances,
whether the government acted reasonably in causing the litigation or in taking a stance during the
litigation.” Roanoke River Basin, 991 F.2d at 139.
III.
Discussion
The Court finds that, notwithstanding the Fourth Circuit’s holding, it was reasonable for
the Commissioner to defend his final decision in this case, which this Court found to be well
explained and well supported. First, the Commissioner was substantially justified in defending
the ALJ’s RFC finding and her explanation thereof, which this Court held to be “based upon
evidentiary support,” “sufficiently” explained, “adequately considered,” and, ultimately,
sufficient to permit meaningful review. (Doc. No. 17 at 8-11).1 As the Commissioner argued in
1
The Court also explained that, contrary to Plaintiff’s contention, Mascio v. Colvin, 780
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his brief, the ALJ considered what the evidence showed about Plaintiff’s ability to perform a
variety of work-related mental functions, including her ability to concentrate, persist, and
maintain pace and to interact with others, and the ALJ explained why the evidence supported her
findings. (Doc. No. 16 at 4–11). Of particular note, and with respect to the first of these two
areas of functioning, the ALJ cited and discussed records documenting Plaintiff’s reported ability
to pay attention, finish tasks, follow instructions, and handle changes in routine (Tr. 20), as well
as notes documenting good attention (Tr. 20), normal mental status examinations (Tr. 24), and
routine mental health treatment. (Tr. 24; see Doc. No. 16 at 6–7). The ALJ cited and discussed
similar self-reports and treatment records relating to Plaintiff’s ability to interact with others.
(Tr. 20; see Doc. No. 16 at 8–9). The ALJ likewise discussed the impact that Plaintiff’s
documented limitations in activities of daily living would have on her ability to function in the
work environment. (Tr. 19; see Doc. No. 16 at 9–10). And, as noted, this Court agreed that the
ALJ’s findings found support in the record and that her discussion permitted meaningful judicial
review. (Doc. No. 17 at 7–11). The Fourth Circuit reached a different conclusion, but this
Court’s decision demonstrates why the Commissioner’s defense of that issue meets the basic
standard of reasonableness.2
The Commissioner was likewise reasonable in defending the ALJ’s decision on the issue
of the alleged conflict between the VE’s testimony and the DOT. As the Commissioner
explained, and this Court agreed, the courts in this district had repeatedly rejected the very
F.3d 632 (4th Cir. 2015), was “plainly distinguishable.” (Doc. No. 17 at 7).
2
Moreover, this Court observes that, in a concurring opinion, Judge King stated that he was
unable to join in that part of the Court’s decision because “it is in tension with our recent
decision in Keller v. Berryhill, No. 17-2248, where [the Fourth Circuit] properly affirmed a very
similar mental RFC explanation from the same ALJ.” Thomas v. Berryhill, 916 F.3d at 314
(King., J., concurring).
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argument that Plaintiff presented. See (Doc. No. 16 at 11–12 (citing cases)). In briefing this
issue in this Court, Plaintiff cited no controlling or even persuasive legal authority to support the
assertion that there was an apparent conflict between a limitation to short, simple instructions
and jobs classified as reasoning level two. (Doc. No. 12 at 13–16). Instead, she cited a decision
from the Fourth Circuit and an unpublished decision from a court within this district addressing
entirely unrelated conflicts. (Doc. No. 12 at 15–16). Moreover, on appeal, Plaintiff’s argument
that there was an apparent conflict in this case relied primarily on Henderson v. Colvin, 643 F.
App’x 273, 276 (4th Cir. 2016), and one case each from the Ninth and Tenth Circuits.
Henderson involved, however, an RFC limitation that is entirely different (i.e., “one-to-two step”
tasks) and that lines up with the DOT’s definition of reasoning level one. See 643 F. App’x at
276–77. Moreover, the out-of-circuit cases involve work with a reasoning level of three. See
Zavalin v. Colvin, 778 F.3d 842, 848 (9th Cir. 2015); Hackett v. Barnhart, 395 F.3d 1168, 1176
(10th Cir. 2005). Indeed, the Hackett court specifically noted that reasoning level two “appears
more consistent with” an RFC limitation to “simple and routine work tasks,” 395 F.3d at 1176,
similar to the limitation at issue here.
Furthermore, where a case is remanded for the ALJ to inquire further into purported DOT
and RFC conflicts, but the ALJ’s decision may not ultimately be affected by the clarification, the
Government’s position is likely substantially justified. See Goode v. Colvin, No. 1:14-CV00056-FDW, 2015 WL 1384166, at *2 (W.D.N.C. Mar. 25, 2015). Here, in remanding to this
Court, the Fourth Circuit expressed no opinion as to the merits of Plaintiff’s claim for disability
on remand, further indicating the Government was substantially justified in its position. Accord
Bailey v. Saul, No. 1:17cv326, 2019 WL 3418456, at *2 (W.D.N.C. July 29, 2019) (denying
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attorney fees, finding that the Government’s position was substantially justified, given the legal
precedents that existed when the Government asserted its arguments).
In sum, the Commissioner reasonably continued to defend the final decision in this case
and the prior decisions of this Court, which the Commissioner considered consistent with his
regulations and rulings. While the Fourth Circuit ultimately decided in Plaintiff’s favor, the
Commissioner’s defense of this litigation meets the basic standard of reasonableness. Because
the Commissioner was substantially justified in defending the final decision, the EAJA does not
authorize an award of attorney fees, and Plaintiff’s motion is denied.
IV.
Conclusion
For the reasons stated herein, Plaintiff’s motion for attorney fees is denied.
ORDER
IT IS, THEREFORE, ORDERED that:
(1) Plaintiff’s Motion for Attorney Fees, (Doc. No. 27), is DENIED.
Signed: September 20, 2019
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